This article by A. Nizar Hamzeh first appeared in the Middle Eastern Studies, Vol. 30, No.1, January 1994, pp.79-90. The article analyses the background of Qatar's legal development and its organization of the judiciary. The article is made available through the Documentation Center, American University of Beirut in collaboration with Al Mashriq project.
A unique legal system prevails in Qatar in the Arab Gulf states. Two characteristics define Qatar's particularity. First, as a traditional Muslim society, people have settled their disputes according to the sharia court (Islamic court), which applies sharia law (Muslim law). Second, the independence of Qatar in 1971 marked the termination of British protection and with it British jurisdiction over non- Muslim residents. Consequently, the Amir established the Adlia court (civil court) to meet the needs and problems which resulted from the termination of British jurisdiction.1
The foregoing characteristics, peculiar to Qatar, have produced a viable dualism in its legal system different from that of the other Gulf states. This is not to suggest that dualism does not exist in the legal systems of Saudi Arabia, Kuwait, Bahrain and the United Arab Emirates (UAE). Dualism, however, in these systems is invisible rather than visible. All four dynasties rule on the basis of Islamic legitimacy and the sharia law. Yet, in contrast to the four states where the economic activities and civil matters of non-Muslims are regulated by special committees or courts which are supervised by the King and the Council of Ministers, Qatar's Adlia court is not subordinate to the Amir and his ministers. The court is a rather independent body with a well-defined structure, something which is not present in the legal systems of the other dynasties. In contrast to the prerogatives of the ministers of justice of Saudi Arabia, Bahrain, Kuwait and UAE, Qatar's minister of justice may supervise but does not legislate secular laws, which are the prerogative of the Adlia court itself. This unique phenomenon of dualism which has never been studied consistently or independently will allow us to determine the extent of compatibility between the sharia law and the modem law of the Adlia court. This article will therefore focus on Qatar's legal system as suggested by the background of its legal development, the organization of the judiciary and the implications of dualism.
The territory of the state of Qatar is situated halfway along the west coast of the Gulf, and its territory covers a total area of 4,400 square miles. The oil industry, which developed much faster than the rest of the economy, has raised Qatar to the third highest per capita income in the world. In the 1980s this figure stood at $11,400, with $2 billion drawn from oil revenues. The present population is estimated at 300,000 inhabitants, most of whom reside in Doha, the capital city.2
Over the centuries Qatar's legal system has emerged in three stages: tribal law or desert law, sharia law and modern law.
Scholars are almost unanimous in their opinion that custom is not only the oldest source of law, but also an important one that has shaped the different legal systems in traditional societies.3 Like other Arab Gulf states (Saudi Arabia, Kuwait, Bahrain, United Arab Emirates and Oman), Qatar was made up of Badu (nomads) and Hadar (settled people). While the Badu roamed in the inland region in search of food, the Hadar lived in towns along the coast. Until the end of the eighteenth century, the Qatari tribes settled their disputes according to the customs of desert law recognizing Islam as an article of faith. Each tribe had its own dirah (territory) and its own shaykh (chieftain). The tribe depended on the shaykh for guidance and protection. Thus, the shaykh was the center of power, simultaneously a political chief and the supreme judge of tribal disputes.4 For example, in matters such as the amount and form of dowry payments, use of wells, homicide, theft, adultery and rape, the shaykh * was the sole power in settling disputes in the absence of legislation enforced by a centralized government. In the case of homicide, for instance, if a person from a certain tribe was killed by a member of another tribe (whether the killing was intentional or unintentional), both tribes became involved in what was called a 'blood feud'. In this blood feud tribes followed strict desert law. The victim's tribe would pursue revenge the third day after the homicide, hoping to kill in vengeance some member of the killer's tribe. However, if the killer's tribe was weak, it had the right to ask for the protection of another stronger tribe, until the shaykh of that tribe could find an acceptable solution for the victim's tribe. According to desert customary law, if the victim's tribe does not accept material compensation offered by the killer's tribe, the killer must be executed.5 Thus, justice was not an institution of peace and harmony but rather a strict enforcement of desert rules and customs. Although the desert law prescribed behavior and set sanctions for deviators, it lacked procedures for the enforcement of the principles of forgiveness and reconciliation. Nevertheless, the distinction between desert law and sharia law becomes increasingly blurred with the coming of sharia law as a sole basis for settling disputes among Qataris.
The second stage of Qatar's legal development extended from the end of the eighteenth century to 1916. This stage was characterized by the dominance of sharia law. Unlike modern Western law, sharia law is not an independent branch of knowledge nor is it the creation of legal scholars or secular institutions. Sharia, which literally means 'the way to follow', was revealed by God to the Prophet Muhammad, the founder of Islam, in AD 570. Thus, the sharia is a religious system in both its sources and rules. 6 In this connection, the sharia, contrary to Western laws, does not differentiate between civil obligations and religious ones. The sharia appears to be a one-way legal system from God to the individual. As David and Brierly put it, 'the Shari'a is, therefore, centered around the idea of man's obligations or duties rather than any rights he might have'. 7 In addition to this revelation, in a theocratic system there is no separation between state and religion. The role of the state in Islam is only of value as the servant of revealed religion. Although the sharia holds that civil authorities have the power to regulate society to preserve public order, the new regulations should not deviate from or diminish the importance of the sharia as a sole source of law.8
However, towards the end of the eighteenth century Shaykh Ibn Abdul Wahhab founded Wahhabism in Saudi Arabia. Wahhabism as an Islamic movement was influenced by the Hanbali rite, one of the four schools of Islamic jurisprudence.9 The Hanbali school of law insists upon strict adherence to the Qur'an and Sunna as the major sources of the sharia. It rejects individual reasoning or interpretation as a source of sharia law.10 Following the Hanbali rite, Ibn Abdul Wahhab rejected innovations running counter to pure Islamic faith. He sought to return Muslims to the 'Right Path' and eliminate negative practices of customs and tribal distinction, binding the Arabian peninsula into a unity based on purity and true religion. In fact, followers of Wahhabism thought so highly of their teacher that they refer to the era before him as jahiliyya (ignorance). 11 The Wahhabi movement was responsible for the emergence of the Al-Thani family as rulers of Qatar since 1878. The Al-Thani family, adherents of Wahhabism, used the movement to legitimize their power. Also, with the help of the Ottoman Empire, which was the dominant power at that time, they centralized authority and brought Qatar under sharia law as it was interpreted by Wahhabism. The sitting judges of the sharia court at that time had full jurisdiction over civil and criminal matters. The judges applied the sharia law in resolving the disputes arising. If individuals were dissatisfied with the verdict, they had the right to appeal their cases to the Amir of the ruling family, who had full judicial power as a court of appeal. Thus, there was no separation between the judicial power and the executive power of the Amir.
The enforcement of sharia law limited desert law to a certain extent. One major limitation was that the authority of the shaykh of the tribe came to an end. Second, the application of sharia brought such customs to an end as blood feud, superstitions, black magic and bida' ([undesirable] innovations). For example, the blood feud was outlawed by the sharia court. However, other customs of desert law were integrated within it: aspects such as principles of reconciliation, payment of dowries, use of water wells and business contracts. Despite the fact that the sitting judge applied the sharia, he applied custom in matters that were not covered by the sharia law. Thus, one might argue that regular customs as opposed to irregular ones were incorporated in the sharia. In this connection, it should be noted that while custom is not part of Fiqh, the sharia does not condemn it.12 Nevertheless, sharia law as a dominant legal system had to face a critical third stage of legal development.
The third stage of Qatar's legal development extends from 1916 up to the present. With the intrusion of British political influence and the discovery of oil in 1940 came the introduction of Western laws. The British involvement in Qatar from 1916 to 1971 brought British legal institutions. Under the British Foreign Acts, British legislation was given extraterritorial validity in the principalities of the Gulf.13 In the case of Qatar, British jurisdiction did not supplant local jurisdiction (i.e. sharia law) but instead was parallel to it, governing British and non-Muslim residents in Qatar, who worked for British oil companies and businesses, while Muslim residents remained subject to the jurisdiction of the sharia court. The British court was located inside the British consulate, its judges administered justice by applying the principles of the English common law, including the right to be represented by a lawyer in disputes. Final appeal against a decision of the British court was to the Privy Council in London . 14 However, after the independence of Qatar in 1971, British jurisdiction over non-Muslim foreigners ceased. Consequently, the sharia court regained full jurisdiction in all civil and criminal matters over all foreigners in Qatar. Thus, the status of non-Muslims became incompatible with the law applied by the sharia court. In response to the new situation the Amir, Shaykh Khalifa Bin Hamad Al-Thani created the Adlia court, as distinct from the sharia court, to deal with the backlog or disputes among foreigners and Qatar's nationals. In addition, with the increase in oil revenue, the government began to experience modernization in various fields. Modernization took place in the areas of education, medical services, housing, social welfare programs, state administration, transportation and communication. Thus new laws and new judicial techniques were urgently required to deal with consequences and problems of modernization that were unknown not only to sharia law but to the sharia court as well. Therefore, the Adlia court was deemed necessary in the absence of British jurisdiction for non-Muslims, and in the light of a changing society. Qatar's legal development has culminated in a dual judicial system.
The constitution apparently marked the beginning of an attempt to organize the judiciary. This organization had resulted in a division of Qatar's judicial system: while the sharia court applied sharia law, the Adlia court applied Western civil law.
The amended Provisional Constitution of 19 April 1972 which superseded the Provisional Constitution of 2 April 1970 defines the new state of Qatar in Article 1 as an 'independent sovereign Arab state; its religion is Islam and the Islamic Shari'a is the main source of legislation'.15 With exception to Article 1, however, there is no reference to the sharia law, neither in the procedural Articles 9, 10, 11 or the Judges' Article 65 which states that 'Judges shall be independent in the exercise of their power and that there shall be no interference in the administration of justice by any one'. 16 Thus, it is apparent that the constitution avoided specific reference to the kind of judicial system, which became an apparent dualism. However, according to the regulations of the presidium of the sharia courts and religious affairs, sharia judges are required to have a degree in sharia studies from an Islamic school. Currently most of the sharia judges and personnel are graduates from either Saudi Arabia or from al- Azhar University in Egypt. 17 The sharia court, according to the same regulations, has full jurisdiction in all civil and criminal disputes over Qatar's nationals and Muslims from other countries. The following is an institutional and jurisdictional division of the sharia court (see Figure 1).18
SHARIA COURT
Petty Sharia Court
This court consists of the first and the second court. Each court has two judges. The first court has jurisdiction over cases that need prompt action, such as felony, assaults and theft. The second court handles cases of personal status, such as divorce, marriage and contracts among people.
Grand Sharia Court
This court is headed by a chief judge who is also the president of the presidium of the sharia courts and religious affairs. The court acts as an appellate court to the Petty Sharia and has jurisdiction over major criminal cases such as homicide and serious theft. In cases of personal status, it has a wide jurisdiction on matters of inheritance and family disputes, and it also handles land and property disputes among Muslims. The court acts as a trustee for the property of minors and persons of diminished capacity. The court issues Fatwas on various matters. Its decision is final and cannot be overturned.
Presidium of the Sharia Courts
The presidium is an administrative body rather than a court. It is headed by the chief judge of the Grand Sharia court. The presidium supervises the work of the sharia courts and the chief judge selects their judges, who are appointed to their posts by royal decree.
Therefore, unlike the common law court, the sharia court is not based on case law, the judge does not have to follow precedents and is not bound by the decision of previous cases. The significance of the sharia judge is further highlighted by the absence of the jury system which is a dominant feature of the common law court. The judge applies the verdict of God by virtue of his knowledge of the sharia law. As for procedures, the sharia courts require neither the plaintiff nor the defendent to be represented by a lawyer before the court, Muslims represent themselves directly.
ADLIA COURT
The Adlia court was established in 1971 by royal decree No. 13. The court was supplemented by Qatar criminal laws (decree No. 14), which specified the jurisdictional responsibilities of the Adlia court in criminal cases. Thus, according to both decrees, the following is an institutional and jurisdictional outline of the Adlia court (see Figure 1):19
Petty Penal Court
This court consists of two departments. Each one is headed by a chief judge. The Petty Penal court has jurisdiction over cases such as felony, misdemeanours, traffic accidents, theft and cases that involve violation of the behavioral moral code.
Grand Penal Court
The court is headed by a chief judge called 'the president of the Grand Penal Court'. It has jurisdiction over major crimes such as homicide and serious offenses such as grand theft. It also acts as a court of appeal for suits tried by the Petty Penal court. However, Articles 17, 22, and 23 of the criminal laws specify that in certain crimes, such as intentional or unintentional homicide, and sex crimes such as rape, homosexuality and prostitution, if the accused is a Muslim, only the sharia court has jurisdiction over such crimes. However, the Petty and Grand Penal courts have jurisdiction over non-Muslims.
Civil Court
This court consists of three departments. Each department is headed by a single judge. One department reviews and rules on cases related to rental and lease properties. The other two departments rule on civil, commercial and personal status of non-Muslims. In this connection, the sharia court retains its jurisdiction over the personal status of Muslims.
Figure 1: Insitution of the Judicial System in Qatar
Labor Court
The court was established in 1962 by royal decree No.3.20 The labor court has jurisdiction over all disputes brought to it under the labor law irrespective of the religion of the plaintiff and the defendent. Thus, the sharia court has lost jurisdiction over labor disputes among muslims, which is a part of its jurisdiction according to sharia law.
Court of Appeal
This is the highest court in the Adlia court in Qatar. The judge of the Court of Appeal is also the president of the presidium of the Adlia courts. He is appointed by the Amir and assisted by two judges appointed by him. The Court of Appeal is located within the presidium of the Adlia courts. It reviews appellate cases from the various courts, penal, civil, as well as labor. The ruling of the court of appeal is final and binding.
Presidium of the Adlia Courts
The presidium , which is headed by the chief of the Court of Appeal as stated above, is responsible to the minister of justice. The president selects justices of the courts and organizes the judicial apparatus of the Adlia court.
Unlike the sharia court, the Adlia court sources of law are based on a modern Western concept of law, where rules have been taken from Romano-Germanic legal systems. The judges of the Adlia court issue their verdict in accordance with the precepts of civil law, in which the rule of law is perceived as a rule of conduct according to the concept of justice. Thus, contrary to the sharia judges who apply the verdict of God, the judges of the Adlia court are more concerned with a general rule of conduct for the future. Furthermore, decree No. 13 in Article 6 (section b, c) requires judges and lawyers of these courts to have a law degree from a law school of an accredited university. The decree also requires the judges to have practised law for a requisite period of time. Moreover, the law requires that both the plaintiff and defendant be represented by lawyers in the court.21
Dualism is probably understood as the outcome of ambiguity rather than harmony in the judicial system. Yet it appears that every legal system has certain implications. However, the scarcity of the data makes it difficult sometimes for specific assessment of the obvious dualism. Nevertheless, the implications of the dualism of Qatar's legal system can be seen in the eclipse of the role of the sharia court, the rise of 'legal notables' and the rise of Islamic fundamentalism.
The increasing numbers of civil, criminal and labor laws which are under the jurisdiction of the Adlia court, have gradually contributed to the eclipse of the role of the sharia court. One might even argue that its role has been restricted to matters related to family law. A review of statistical reports published by the Presidium of the sharia Courts indicates that while there has been an increase in cases related to family law and Muslim personal status, there has been a decrease on the other hand in cases related to crimes and felonies.22 The reports show that cases of personal status such as marriage, divorce, inheritance and property rights have increased from 60 per cent in 1984 to 85 per cent in 1988, while the cases of homicide and felonies have dropped from 40 per cent in 1984 to 15 per cent in 1988.23 However, the reports do not explain what the reasons behind this decline are. One possible explanation is that most cases of major crimes and serious offenses have been transferred to the Petty and Grand Penal courts of the Adlia, which probably handle these cases in a more sophisticated way not known to the sharia court. Overall, the statistical reports for the same period do not show the sharia court's jurisdiction over matters related to trade, labor, business and other related matters. The lack of jurisdiction over such areas is due to their having been taken over by the Adlia labor court. Consequently, this has led not only to the eclipse of the role of the sharia court but more importantly to a differentiation between religious duties and civil obligations, whereas they are inseparable according to Islamic sharia law as stated earlier. By the same token the ulama or sharia judges who issue fatwas in matters not covered by the sharia have become of no importance to the Qataris, since there have been other channels through the Adlia court where matters of criminal, trade, labor and business are well defined and the general rule of conduct is well established.
Furthermore, the sharia courts have always influenced government policies. For example, the sharia requires that every Muslim pay zakat (compulsory alms giving); however, neither the Adlia court nor government regulations force them to do that. Moreover, sharia law according to its main source, the Qur'an, forbids the taking of interest by individuals. Despite its clear condemnation, there are a total of 15 commercial banks operating in Qatar. Their operations are monitored by the Qatar Monetary Agency, its laws are secular and entirely divorced from Islamic regulations or influences. However, the banks offer their services to individuals, including Muslims, charging interest on loans and paying interest on savings.24
The rise of the new elite of lawyers is another important implication of the dualism in Qatar's legal system. While the sharia court structure is made up of the traditional religious elite such as the ulama and judges, the Adlia court on the other- hand, as soon as its court judges and personnel became independent of the sharia court has prompted the emergence of a new elite of judges and lawyers as opposed to the traditional ones. The new elite has become what Ehrman calls 'the legal notables'.25 The legal notables of Qatar are made up of judges and official public prosecutors and lawyers, trained personnel employed in government and private business, and the legal services groups. Although statistical figures about the legal notables are not available, speculation can be made about them by using related figures of Qatari students who study abroad in various fields such as modern law and business administration which are neither available nor well established in Qatar. Out of 1,300 students studying abroad, 387 are in social sciences and humanities.26 Out of these 387, 96 students are majoring in business administration, followed by 43 students majoring in Western law, in comparison to 13 students studying sharia law. Then come political science and economics majors (27 students each). The rest of the students (94) are majoring in humanities." However, contrary to the sharia law, students who study in Saudi Arabia and Egypt (al-Azhar Sharia University), students studying Western law, business administration and related fields get their degrees from Western countries or from Arab countries with Western educational influences such as Lebanon, Jordan and Egypt. Thus it can be assumed that posts of judges, lawyers, trained personnel and higher adminstrative posts of the legal notables are supplied from the same student, who in turn become the legal notables. However, there are at least seven established law firms in Doha, which offer legal services for Qatar's nationals and businesses.27 More importantly, having been exposed to liberal ideas and different concepts of Western law, the new elite are put in competition and are naturally in conflict with the traditional religious elite of the sharia court.
A third probable implication is the rise of Islamic fundamentalism. The impact of the present dualism on the rise of Islamic fundamentalism seems to be insignificant so far. However, the separate judiciary of Qatar's legal system may reinforce certain interests and alienate others. This is not to suggest that Islamic fundamentalist trends do not exist in Qatari society. However, possibly owing to the establishment of the sharia court and its judges who are usually government appointees, they tend to reinforce the legitimacy of the political authority in their interpretation of the sharia. Thus the responses of the establishment sharia may sound conservative rather than militant.
Nevertheless, the ensuing tension and ambiguity between legal norms and behavior as a result of dualism can alienate certain people in Qatar. In this respect, Ehrmann notices that 'institutions that are deeply rooted in tradition and values ... will be generally more resistant to modern law'.28 Thus one would expect that Qatari Islamic fundamentalists are to be more alienated and resistant to the Western law of the Adlia court than the establishment sharia, Furthermore, fundamentalist Muslims believe that power in Islam is ascribed only to God and only the sharia court executes God's law.29 Consequently, modern legal systems are alien to the existing Qatari fundamentalists such as the Muslim Brotherhood, at Takfir wal- hijrah, Hizb al-da'wah al-islamiyyah, and Hizb tahrir al-jazirah. While the first two parties are Sunni-based, the second two are Shiite-based.30 Although much of their activities are covert and underground, it is well established among Qataris that the declining role of the sharia court will increase the militancy of Islamic fundamentalism, especially among the lower strata such as rural households and the badu.
The purpose of this article has been to investigate and to determine the extent of dualism in Qatar's legal system. It is found that dualism is visible and significant owing to two distinct types of judicial organization, the Adlia court and the sharia court. While the sharia court's sources and procedures are based on Islamic sharia, the court of the Adlia is based on a Western concept of law. The fact, however, remains that the Adlia court is neither part of the sharia court, nor supplementary to it. It is entirely independent and belongs to the modern legal sytem, the civil law. Thus the belief that Qatar is still governed by the sharia only, and the Adlia court is supplementary and incompatible with the sharia can be disputed.31 While the sharia court is still a viable source of moral guidance to many Qataris, there is more than a little evidence to support the fact that the sharia court's jurisdiction has been limited and even excluded from certain areas, such as labor, trade and business. In practice the sharia court entertains issues of Muslim personal status such as marriage, divorce, inheritance and crimes related to the family. However, its role in influencing individual behavior and state policies has been increasingly limited. Moreover, the presence of dualism has led to the rise of legal notables, as opposed to traditional religious ones. Furthermore, the presence of the modern legal system of the Adlia court may also increase the already alienated militant fundamentalist groups, which consider the Adlia court alien to the sharia. Thus the gap between the two laws will continue to increase as neither the sharia nor the civil law is applied on an integral basis. In the end, it depends on the state responses towards managing the dualism. Perhaps the civil law needs to be asserted over the sharia law. Whichever is the alternative, it is essential to have a legal system that is harmonious and embodies practical solutions to legal problems which might not find answers in religious faith only.
NOTES
1. For more details on Qatar political institutions, see Yousef M. Abiden, al-Muassasat al siyassiya fi Qatar (Political Institutions in Qatar) (Beirut, 1979), p.290; see also Ahmad Rashid and Yousef M. Abiden Idarat al-tanmia fi dawlat Qatar (Development of Administration in Qatar) (Doha, 1975). Back
3. R. David and J. Brierly, Major Legal Systems in tile World Today: An Introduction to the Comparative Study of Law. (New York, 1978), p.423; Henry W. Ehrmann, Comparative Legal Cultures (New Jersey, 1976), p.21; J.E. Peterson, (Tribes and Politics in Eastern Arabia), Middle East Journal, Vol. 3 1, No. 3 (1977), pp. 297-3 10. Back
6. Muslim law or sharia has four sources: 1) Qur'an (Muslim holy book); 2) Sunna (Prophet Sayings [Hadith]); 3) Ijma' (consensus of Muslim Legal Schools [Fuqahal); 4) Qias (analogical reasoning). For more details see S.E. Abdel Wahab, An Introduction to Islamic Jurisprudence (Cairo, 1963), pp.30- 40. Back
9. The four Orthodox Sunni rites or schools of law in Islam are named after the teachers who founded them: the Hanbali school was founded by Imam Ibn Hanbal (780-855); the Hanafi School by Imam Abu Hanifa of Kufa in Iraq (696-767); the Maliki School by Imam Maliki (715-95); the Shafi'i School by Imam al-Shafi' (767-820); for more details see J.N. Coulson, A History of 1slamic Law (Edinburgh, 1964), pp.38-91. Back
11. Michael Curtis (ed.), Religion and Politics in the Middle East (Boulder, Colorado, 1981),p.277. Back
17. Ri'asat al-mahakim al-shariyyah wal-shu'un al diniyyah (Presidium of the Sharia Courts and Religious Affairs), Statistical Report for 1983-1984 (Qatar 1984), pp. 15-17. Back
19. Majmu'at qawanin Qatar (Collection of Qatar Laws for the Years 1961-1985) (Doha, 1988). Vol.3, decree No. 13, specifies the institutions of the Adlia Courts on pages 317-22. Decree No. 14 establishes Qatar criminal laws on pages 1126-60. Back
22. Riasat al-mahakim al-shar'iyyah wal-shu'un al-diniyyah (Presidium of the Sharia Courts and Religious Affairs), Statistical Report for 1987-1988) (Doha, 1988), p. 93. Back
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